HKSAR v. Masoom Parvez

CACC 85/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 85 OF 2015

(ON APPEAL FROM DCCC NO. 1035 OF 2014)

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JUDGMENT
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1.On 26 February 2015, the applicant was convicted on his own plea before HH Judge Alex Lee in the District Court of one charge of trafficking in a dangerous drug, namely 11.94 kilogrammes of cannabis resin, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and sentenced to 3 years and 2 months’ imprisonment. He now seeks leave to appeal against his sentence.

The facts

2.On the morning of 4 September 2014, customs officers at Hong Kong International Airport found during an X-ray examination that an incoming carton box contained suspicious substances. They kept the carton box under surveillance and saw the applicant pick it up at No.11baggage conveyor belt. They then targeted the applicant for baggage examination. Upon enquiry, the applicant (who had arrived in Hong Kong from Kolkata via Mumbai in India) admitted that the carton box belonged to him. Customs officers found inside the carton box a total of five plates in plastic wrapping containing what was later found to be 11.94 kilogrammes of cannabis resin, worth about HK$823,860. The applicant was duly arrested.

Mitigation

3.The applicant was 40 years of age at the time of his sentence. A businessman dealing in electronic parts, with no criminal record in Hong Kong or India, he was married with two young children. His parents and family all depended on him. In mitigation, counsel on his behalf explained that the applicant had brought the carton box to Hong Kong as a favour for someone whom he had met at the airport. Although he knew the box contained dangerous drugs, he had been foolish in agreeing to bring the carton box to Hong Kong.

Reasons for sentence

4.In sentencing the applicant, the judge referred to the case of Attorney General v Tuen Shui Ming & another[1], in which the Court of Appeal held that the trafficking in over 9,000 grammes of cannabis resin should warrant a sentence of 4 years’ imprisonment and upwards. The judge further noted that in HKSAR v Sherpa Chhewan Gyabu[2], the Court of Appeal considered 5 years’ imprisonment an appropriate starting point for trafficking in 13 kilogrammes of cannabis resin. Finally, he referred to the case of HKSAR v Gurung Suraj[3], where a Single Judge had refused to grant leave to appeal against a sentence after plea of 3 years and 4months’ imprisonment for trafficking in 15.2 kilogrammes of cannabis resin. He noted that the sentencing judge in that case had enhanced the starting point to 5 years’ imprisonment so as to reflect the international element involved in bringing the drugs over the border into Hong Kong.

5.The judge in the present case adopted a starting point of 4years and 6 months’ imprisonment for the quantity of cannabis resin concerned and then enhanced the sentence by 3 months for the international element involved, thus making a notional sentence after trial of 4 years and 9 months’ imprisonment. Giving the applicant the usual one-third discount for his guilty plea, the judge sentenced him to 3 years and 2 months’ imprisonment.

Grounds of appeal against sentence

6.In his hand-written statement attached to the Notice of application for leave to appeal against sentence filed on 1 April 2015, the applicant said he wanted to be released early to take care of his wife and children in India who had no money; and he has repeated the same plea before me this morning.

Consideration

7.The judge conducted a very careful sentencing exercise and referred to the relevant cases involving cannabis resin. His starting point appears to have been in line with the guidelines laid down in respect of cannabis resin in Attorney General v Tuen Shui Ming and another and with the general levels of sentence applicable to such quantities in other appellate cases.

8.I can see no error in either the starting point adopted for the trafficking of this quantity of cannabis resin across the border into Hong Kong or in the discount given for his plea. Furthermore, the courts have repeatedly stated that extenuating family and domestic circumstances do not amount to mitigation in an offence of this gravity, involving as it does the trafficking of a large quantity of dangerous drugs across the border into Hong Kong.

Conclusion

9.Accordingly, leave to appeal against sentence is refused. The applicant is advised of his right to renew his application to the Court of Appeal but also of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of this application.

Mr Vincent Lee SPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person